公平责任的适用困境与纾解方法——以《民法典》第1186条为解释文本
Dilemma in the Application of Fair Liability and Ways to Relieve It —Explaining the Text with Article 1186 of the Civil Code

公平责任原则系一项独立的归责原则，与过错责任原则和无过错责任原则地位并列。本文通过梳理公平责任的适用困境，发现其饱受诟病是由于适用要件模糊以及适用条件未被严格遵守，《民法典》以“一般规定 + 具体条款”的规范模式限缩适用公平责任不能根治因滥用公平责任造成的弊病。纾解适用困境需要严格遵守行为人与受害人主观无过错、行为与损害之间存在因果关系两大要件。再采用目的性扩张解释的法律解释方法，将“按照法律的规定”解释为依据既有的损失分担规则或习惯。虽然《民法典》删除了“可以根据实际情况”之规定，但是后民法典时代司法实践仍需要根据具体个案的“实际情况”自由裁量以保证裁判公正合理。
The principle of equitable liability is an independent principle of attribution, alongside the principles of fault liability and no-fault liability. By sorting out the dilemma of the application of fairness liability, this paper finds that it has been criticized for being vague in the application requirements and not strictly observing the applicable conditions, and the Civil Code restricts the application of fairness liability with the normative model of “general provisions + specific provisions”, which cannot cure the drawbacks caused by the abuse of fairness responsibility. Solving the dilemma of application requires strict compliance with the two major elements of subjective fault between the perpetrator and the victim, and the causal relationship between the act and the damage. The legal interpretation method of purposeful expansion interpretation is then adopted, and the interpreta-tion of “in accordance with the provisions of the law” is based on existing rules or customs on allocation of loss. Although the Civil Code deletes the provision that “it may be based on the actual situation”, judicial practice in the post-Civil Code era still needs to be discretionary according to the “actual situation” of specific cases to ensure that the adjudication is fair and reasonable.